Kalamazoo’s non-discrimination-ordinance amendment passed yesterday by a 2 to 1 vote. (I could not vote for it on account of not living in the city proper.) The ordinance bans discrimination in housing and public accommodations based on real or perceived sexual orientation or gender identity.
I actually first learned of this proposed ordinance AND became a supporter of it when I saw an appallingly transphobic and fearmongering poster put out by the “Vote No” side. It featured “mug shots” of men-dressed-as-women (whether they were actually transgendered, transvestites, or just dressed up for the fearmongering poster, I have no idea) and tales of how these men had been, or were going to be, peeping at women in a restroom near you.
I said, “I have no idea what this ordinance says or what it’s even about, but I would vote “Yes” on it just because this poster is such an appalling piece of bullshit that I can’t bear to be even tenuously affiliated with whatever hateful asshats produced it. Thanks, poster!”
…Then I learned I’m not in the city and so could only vote on the much less interesting (but, sadly, equally controversial) public transportation millage. Egh.
I still have no idea what the “Vote No” position was, exactly. A few weeks before voting day, signs started going up in local front yards reading “NO Discrimination – Vote NO on Ordinance 1856.” Which, of course, confused me. And which, of course, the opponents insisted was NOT going to confuse people (yeah, right), and that they thought the ordinance actually caused discrimination. (I found out this morning their group is called “Voters Against Special Rights” or something like that.)
Now, someone help me out here, because I just don’t get the following:
1.) How does an ordinance that prevents Person A from discriminating against Person B based on (a) how they dress and/or (b) what Person A thinks Person B’s sexual orientation is, and/or what Person B’s sexual orientation actually is grant “special rights” to anyone?
Granted, I understand that as a straight cis woman that no one’s ever likely not to rent to me because I am (or generally appear to be) straight or cis. But that’s a function of my straight cis privilege – that I get because “straight” and “cis” are the perceived “normal” categories. It has nothing to do with those categories actually having some inherent virtue more worthy of being respected. And, if someone did want to refuse to rent to me or serve me beer because I look straight or cis, this ordinance stops them from doing that too.
2.) This ordinance does not prevent people from having all the private animus they want against, say, transgendered folks, nor does it prevent them from privately expressing that animus. Non-het, non-cis people don’t suddenly get a life that’s all sunshine and roses just because you’re not allowed to say “get the fuck out of my restaurant, you queer.” Plenty of people are still going to treat them like complete shit. This is unfortunate crap and I wish it were not so, but it is. Furthermore, if you are one of the people who still wishes to treat non-het, non-cis people like complete crap, you are still free to do so on your own time (though I really wish you’d quit).
3.) Why exactly are men who never came up with the idea before suddenly going to say, “oh, hey, I can totally dress up as a woman and go into women’s bathrooms and peep at them or assault them or, hey, whatever!” Keeping in mind the amount of still-totally-legal private animus they will be drawing towards themselves from #2 above.
4.) We still live in a male-dominated society, where very little, if anything, seems to stop those men (I am overlooking that women also commit sexual assault because the “opposeds” did, and because the overwhelming majority of assaults period are still committed by men) who really really want to assault a woman in a public place. Can somebody show me a concrete example of a case in which knowing that a gay or trans self-expression could get him beaten up was the direct cause of a man deciding, “oh, hey, better not try to sneak into the women’s bathroom and assault them!”?
5.) This ordinance also prevents people from discriminating based on perceived sexual orientation or gender identity. Not only does it prevent, say, a restaurant owner from kicking out actual trans or gay people, it also prevents them from kicking out people whom they have randomly decided must be trans or gay.
I bring this up for three reasons: (1) every now and then (frequently), I get mistaken for a lesbian, (2) obviously by people whose gaydar is broken, which I can sympathize with even when I’m laughing my straight ass off because I have the brokingest gaydar that ever broke, and (3) I have an acquaintance who was permanently crippled after three teenagers beat him up one summer night on the grounds that he must be gay. He was not gay. They just arbitrarily decided he was, presumably to “justify” their assault.
My point being, tangentially, that even if you live in the magical land of Stupid Hatred, where it is non-het and non-cis people’s “fault” for having been born the way they are and if they want anything good out of this life they’ll straighten up (pun intended) and fly right goddammit, this ordinance protects the “good” “normal” het-and-cis people from moron landlords and bartenders who just can’t see I’m really straight and also really a man dammit. You’re protected even if you’re doing everything “right” – so WTF is the problem???
Maybe I am just a hippie pinko liberal socialist tree-hugger, but I don’t get it. ??
(Oh, and: the losing opposition blamed their loss on not having as many funds as the supporters. Because when your entire position is based on hate and fear-mongering, the only thing that could ever stop you is lack of funds. Totally.)
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So Here Is an Irony
A few days after my last post (in which I recapped the America’s Affordable Health Choices Act, Part I, for your health and enjoyment), I was admitted to the hospital with primary insomnia of unknown cause. I had not slept for eight days and was seeing things. And by “things,” I mean “mostly centipedes.” I’d have preferred some statuesque British men, but I had no choice in the matter.
I spent a total of ten non-consecutive days in the hospital and now have $11,000 of medical bills I cannot pay because the condition for which I was admitted to the hospital, and my extended absence from work caused by being in the hospital, cost me my job.
That’s $11,000 AFTER INSURANCE, by the way.
I should point out that I worked as an attorney and had insurance through the mid-sized law firm at which I was an associate. By which I mean to point out that even the so-called “well-off” can be hosed in a hot second under our current “system.”
Less on healthcare, more on local politics, imminently.
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Because I have been uneducated, uninformed, and unimpressed by the media’s overall coverage of the health care reform battle, I’ve decided to read the bill myself. Like all bills introduced into Congress, the full text of the bill is available at http://thomas.loc.gov/. The health care reform bill is HR 3200, the America’s Affordable Health Choices Act of 2009 (“AACHA”), introduced by Rep. John Dingell (D-MI).
Here are some notes on the bill’s key points:
Title I: Reforms for Private Health Insurance
Title I of the AAHCA enacts various reforms to the current private insurance market. First, Title I allows insurers who provide health insurers through employers to keep doing so, provided the plans meet certain provisions.
First, the plan is not allowed to raise its rates arbitrarily after the public option goes into effect – if it does raise rates, it has to do so on all its insureds and according to stringent rules set out by the newly-created Health Choices Commissioner.
Private insurers will also have five years to rearrange the plans they offer so that they provide, at the very least, the “essential benefits package” described in the bill.
The above portions of Title I do not apply to plans that are limited to certain specific coverages, such as “hospital-only” or “prescription-only” supplemental plans.
Section 111 of Title I prohibits excluding insureds from coverage based on pre-existing conditions. Private insurers will no longer be able to refuse to pay medical bills based on the argument that the condition was “pre-existing.” Nor will they be able to refuse coverage altogether to persons who have “pre-existing conditions.”
(A “pre-existing condition” is basically anything you had before the day your health insurance went into effect, whether you knew you had it or not. For instance, cancer that is discovered six months after your policy begins is a “pre-existing condition” if it was probably there before you got your insurance. If a private insurer even suspects your condition was “pre-existing,” they will likely deny coverage – this is, in fact, the rule in many companies. This is true even if routine testing showed nothing. Even if you had no symptoms.
I wish I were exaggerating, but I have had too many cases with exactly this fact pattern. I am, in fact, understating the problem.)
Section 113 caps insurance premium costs and prevents insurers from charging different rates arbitrarily. Insurers may use factors such as age, average cost of health insurance in the immediate geographical area, and enrollment by families, but the extent to which they can change rates based on this information is limited.
Section 114 requires coverage for mental health on an equal level with coverage for “physical” health problems.
Section 115 requires insurers to establish comprehensive provider networks. This should reduce the costs to insureds who need specialists that are not in their insurance network, as insurers will be required to include necessary specialists when possible.
Section 121 requires all insurance plans, public, private or otherwise, to provide a minimum level of guaranteed benefits. These include payment for hospitalization, outpatient hospital and clinic services, including emergency room services, professional services by physicians and other health professionals, services, equipment and supplies related to the care prescribed by a physician or health professional, prescription medications, rehabilitative services, mental health and substance use disorder care, preventive care, maternity care, and well baby/well child care for children under 21 years of age.
This section also mandates that insurers provide a minimum of $5,000 care per person and $10,000 per family. The bill also prohibits cost-sharing for preventive and well baby/well child care Insurers are required to use copayments rather than coinsurance whenever possible.
Section 123 establishes a Health Benefits Advisory Committee, to include the Surgeon General. The committee will “recommend covered benefits and essential, enhanced, and premium plans.”
Sections 131 and 132 require private insurers to observe fair marketing practices and to provide fair grievance and appeals procedures. These procedures will include the basic requirements of due process, which are also guaranteed to all U.S. citizens under a public health option.
Sections 133 through 136 provide rules and regulations for transparency, timely payment of claims, and rules for coordination and subrogation of benefits. These rules are designed to prevent insurance companies from “baffling ‘em with bullshit,” so to speak. They prevent insurance companies from avoiding payment of benefits by tying up insureds in declaratory actions and other forms of litigation indefinitely.
(Full disclosure: a large part of my caseload involves declaratory actions and other forms of litigation designed to tie up insurance claims in the courts. Among other things, these claims postpone and often abrogate entirely the insurer’s obligation to pay. I have perhaps three of these cases for every one case subject to “tort reform” in recent years. You want to reform torts, tell your Congresscritter to pass this bill and stop insurance companies from baffling their insureds with lawsuits.)
Section 141 establishes the Health Choices Administration and its head, the Health Choices Commissioner, which will be responsible for overseeing both the new rules applicable to private insurers and the administration of the public health options. The HCA will include a Health Insurance Ombudsman (Section 144) to whom we can all complain.
Section 152 provides that “all health care and related services (including insurance coverage and public health activities) covered by this Act shall be provided without regard to personal characteristics extraneous to the provision of high quality health care or related services.” In other words, it prohibits discrimination in health care. The bill also provides whistleblower protection (Section 153) and collective bargaining protections (Section 154).
Section 161 requires insurers whose collections-to-expenditures ratio does not meet a certain limit (i.e., they do not spend as much as expected) to provide rebates to their insureds. It also prohibits recission of insurance except upon clear and convincing evidence of fraud, and requires independent third-party review of rescissions.
Currently, private insurers in most states have limited reasons they can use to rescind (take away) your health insurance. Fraud is included in all the states of which I know. In the states in which I practice, “material misrepresentation” is also included. A “material misrepresentation” is anything that, had the insurer known it when you applied, would have caused the insurer to make a different decision about your coverage. Needless to say, the only thing required to prove this is for the insurer to say under oath, “yeah, if we had known that, we’d have done it differently.”
This Section will eliminate a significant portion of my caseload and may put me out of a job. I do not care. Pass it. Because what insurers do now is unfair, unethical, and wrong.
Section 164 provides reinsurance for retirees whose Medicare benefits are not quite covering all their needs, under the same rules and regs as the rest of us are to get our insurance from now on.
Title II: The Public Health Insurance Option
Section 201 establishes the Health Insurance Exchange (“the Exchange”). The Exchange is basically a health-plan marketplace for individuals/families and employers: both private insurers and the federal government will offer various plans through the Exchange, and individuals, families, and employers can “shop” the various options and pick one that suits their needs and budget.
In order to be eligible to “shop” the Exchange, an individual or employer cannot already have (or provide) health insurance. By “health insurance,” the bill means a plan that meets the requirements laid out in Title I; Medicare; Medicaid; members of the armed forces and their dependents (including Tricare); or coverage under the VA. Individuals and their dependents who do not have any of the above are automatically qualified to “shop” the Exchange. No one is REQUIRED to pick the public option plan; if you find a private plan in the Exchange that you like better, you are free to pick it instead.
Employers are also included in the Exchange on a graded scale: the smallest employers (ten or fewer employees) can “shop” starting in the first year of the Exchange (2013), with larger employers having to wait until the second or third year to begin, depending upon their size. No such “size requirement” applies to individuals or families.
Section 203 outlines the various levels of “benefits packages” available in the Exchange. These are known, basically, as the “basic,” “enhanced,” “premium,” and “premium-plus” plans. The bills goes into some detail as to what goes in which plan, but all of them, including the “basic” plan, must cover the minimum required items set out in Section 121 (above). It also provides for little necessities like linguistically-appropriate and disability-appropriate care.
(Section 121, for the record, requires coverage of several things that are not in most private insurer’s “basic” plans currently, including maternity coverage and mental-health coverage. It is, therefore, already an improvement over the “free market” options.)
(Oh, and don’t bother making a snarky comment about “linguistically-appropriate care.” Instead, think good and hard about just why it is you think people who don’t speak English deserve to die.)
Section 208 provides for operation of State-based Exchanges at the option of a state or group of states. If the state or group of states gets approval to run an Exchange, it must do so under the same rules by which the federal government will run the Exchange.
Whew! This is a larger task than expected! Stay tuned for Part II, where we’ll begin with Section 221: The Public Option.
Dani is an attorney specializing in insurance defense. She is also disabled.
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Fascist America: Are We There Yet?
This does answer one question I’ve had for some time: if the loons on the Right really are as loony, ridiculous, nonsensical, illogical, and just plain silly as they appear to be, why are they still around??
I mean, birthers? “Teabagging”? “Obama’s death panel”? Are they SERIOUS?
I fear they are.
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Professor Gates’ interview with The Root on his bogus arrest
Professor Gates’ arrest for having the temerity to enter his own home provides, among other things, a great illustration of what, exactly, white privilege is. So many white people tend to confuse white privilege with socioeconomic privilege, then insist they have no “white privilege” because they were born in crapmagical socioeconomic circumstances. That’s not it at all.
My white privilege works like this: if I had actually broken into Professor Gates’ house, chances are very good that the neighbor, even having spied me doing it, would not have called the police. White women do not break into people’s front doors in broad daylight, but we assume – often unconsciously, being steeped in institutionalized racism, but we assume nonetheless – that black people do.
Assuming the neighbor had called the cops anyway, and I had then answered the door for the police in Professor Gates’ bathrobe and fuzzy slippers*, acted politely and said “what seems to be the problem, officers?” – chances are excellent the officer would have said nothing more than “sorry about the disturbance, ma’am, have a nice day.” Because white women who answer the front door in a bathrobe and fuzzy slippers are not criminals. They are, rather, a paragon of domesticity. Never mind that at this point I have stolen Professor Gates’ bathrobe and fuzzy slippers in addition to breaking and entering.
(For what would have happened if I were a white man, see Kate Harding’s post on the subject.)
This is white privilege. It’s not being born with a silver spoon up your ass or having the brown masses of the world wait on you hand and foot. It’s little, usually unconscious things, like people not immediately assuming you are a criminal even when you are seen breaking into someone else’s house. Here we have a Harvard professor, who has accomplished more at the middling age of 53 than most of us will in our lifetimes, who has friends in places most of us can only dream, who has media and PTB access that can turn any police officer into an unemployed schmuck, and who was nevertheless accused from the get-go of being a felon rather than assumed to be a local. Because he is black.
I would not have been so accused. Not even if I had actually committed a felony. Because I am white.
Before you set your head on fire: I’m not saying all white people can get away with crimes. Very funny. I’m saying that no one, anywhere, ever, in America will ever suspect me of wrongdoing merely because of my skin colouring. That’s white privilege: my skin colour is never an issue. If I were arrested for breaking-and-entering Professor Gates’ house, there would be ZERO DOUBT over whether my skin colour had anything to do with it. THAT is white privilege: the privilege to be arrested because you maybe ACTUALLY DID something, NOT merely because you are being black in the wrong neighborhood.
Capisce?
(*No, I don’t know if he actually owns a bathrobe and fuzzy slippers.)
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Now We Get To It
As expected, private insurance companies nibbling away at public health care.
No surprise here. No one really expects tigers not to eat meat. The insurer’s behavior is totally expected, normal, and natural for what they are, which are large private companies attempting to maximize profits on a model of “insurance” that cannot and never has been able to work. Human health never is and never can be the type of calculable risk amenable to insuring. BIOLOGY DOES NOT WORK THAT WAY. Were we all replaced by androids, perhaps. But not until then.
(Caveat: were we all replaced by androids, HMOs would have worked too – the HMO model only works if 100% of the parties involved are both rational and completely healthy 100% of the time. Then, of course, we would not need health insurance at all.)
A quick overview of the Americare plan is available here. It is, basically, what a number of us have been challenging the private insurers to allow for some time: let the federal government into the health insurance business as a market participant. That’s all. If public insurance is really the services-strangling, cost-hoovering juggernaut its opponents suggest, they should be happy to watch it fail in the market, right?
…Ah, but now that the idea is actually on the table, we get to the REAL source of their caterwauling: private insurers are now insisting they will be put out of business by a public health insurance program.
To which I say, you know what? If you are in fact threatened by the existence of a program demonstrated to run at 25% less overhead than you do, that is not obsessed with profiting the elite few who own shares of it (BCBS, which is a nonprofit, excepted), you will either start providing a better product at a lower cost, or you will die. THAT is your beloved “free market,” which by careful gutting of regulations and enacting of special dispensations for the creations of your cartels you have striven so long to preserve. Don’t you DARE, now that the free market that has benefited you for so long threatens to ruin your existence, come wriggling and whinging to us, demanding that the market be made less free. Bed. Made. Lie.
(For the record: I do not actually like the Americare plan. Granted, I find it immensely preferable to doing nothing. But it’s still a piecemeal approach to a problem that needs a slash-and-burn: cut private insurers back to covering merely what the federal program will not, and create a state-governed federal single-payer program with a small premium charge for those who can afford to pay it, which are the vast majority of us – Medicare for all.)
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By which I don’t actually mean “converting to Buddhism” (though as I get older I seem to become “more zazen, less anything else”), but rather “dramatically overhauling my ownership of large piles of crap.” This is something I have wanted to do since I got out of undergrad, but since I’d consigned myself to three more years of living in studio apartments and building furniture out of my casebooks (not actually kidding), I never really got a chance.
Then I moved in here and had to get over the six- and nine-month “humps.” Until this February I hadn’t had the same address for more than six consecutive months since 1999. Which doesn’t sound all that long ago to me, except it was a decade. I was tempted to buy a Tumbleweed House and go park it on the beach. (I still am, only I want a slightly larger non-wheeled one – say 250 square feet).
So with the frighteningly addictive help of Zen Habits and Unclutterer, I recently started overhauling my life again. I did this in undergrad, with excellent results, but with different aspects: my diet, my exercise habits, my sleep habits, my wardrobe. (My wardrobe is an ongoing project. I am my own Barbie doll.) Those things are as good as they’re going to get. I want to overhaul my medical routine, but that is taking Time.
This time, it’s been a combination of (a) getting rid of my excess crap and (b) getting plans for using the crap I have been carrying around that is not designated “excess,” like my several hundred books. The excess crap was stuff I kept because I didn’t know where I would settle down and therefore didn’t know what I would need there. (Some of it, like my casserole dishes, was because I inherited things from family, like the original-issue Pfaltzgraff service for anywhere-from-1-to-14-depending-on-what-you’re-serving-it-on I got from my mother. My only use for a casserole dish is soaking my feet. And holding my meds.)
(By the way, if anybody would like to trade an original-issue “Village” three-quart mixing bowl or a couple of the pedestal mugs for a casserole dish or two, please let me know.)
The books were because I am a total sucker for buying books and therefore tend to buy them much faster than I can read them. Also I buy books because “I think I should have this,” not because I ever intended to read it. That’s how I got Mills’ On Liberty, for instance, which I am finally currently reading. But I digress.
At any rate, having made the first big cut in the junk and a much bigger cut in my wardrobe than I had originally realized I needed to make (and yet, I miss nothing…clearly I am over-accumulating clothes), I am now attempting to make a dent in the books. This, of course, requires me to read the many I have accumulated but not read, to determine whether I should in fact keep them. Which I don’t mind in the least (or I would not accumulate books in the first place), but which is a slow process during which I must either live with the books or burn them down.
The good news is that I thought working ten-hour days would exhaust my reading-and-writing brain, but it’s actually (along with some proper exercise and HT-5 production…o hai lumen, glad you could join us) making me sharper. I can retain and articulate much more quickly than when I’m not under the gun. Not that I’m suggesting I want MORE work, certainly, but I seem to do best when the thumbscrews are just a leeetle tight. Must remember this when work slacks off again. (Which it won’t until after Sept.)
Right now, I am trying to decide if I want to dispose of the Herman Miller table and/or one or two of the three chairs in my living room. The more I have moved crap out of my living room, the more I have realized that I have a prime setup for a small dance studio, which I have always wanted. I only use one of the chairs, and the other one came from my parents and could easily go back to its spot in the spare upstairs bedroom whence it came. The third chair is my task chair from undergrad, which could also go to the parents or to one of my various college-aged cousins, except the cat loves it. A lot. So if I get rid of either, it’ll probably be the leather one first. (Though I could try moving Her Highness’s rainbow blanket to the leather chair and moving said chair to the sunny spot and see if its appeal increases.)
The table is not mine anyway; it belongs to my landlady and can easily be taken back downstairs. It’s a handy spot to put my laptop when I’m not using it, but that is literally all that table does. That and sit around rocking its bad-ass utilitarianism.
My inclination at this moment is not to move anything until I see if I can get the bookshelves down to one unit. I have sufficient space for my purposes right now (as long as I don’t go crazy with the pirouettes or jumps), and enough books to get through that it might be nice to have armchair options (that the cat has not bogarted).
The nice part is that, so far at least, I’ve had to trash very little. Even that year-old stack of ABA Journals I kept insisting I’d read got recycled. (I kept exactly two articles, a total of about nine pages.) I made one run to Goodwill on Saturday and will make another this week, and the furniture will either go back to my parents, to a cousin, and/or get donated. And OMG is it easier to sweep up the cat hair now!
Speaking of which: I rolled up the rug for storage, but Gracie has decided that makes it her own personal tree. I don’t want a rolled-up rug in my living room indefinitely, but it completely deters her from sharpening her claws on the cork wall. Maybe I’ll squeeze it in a corner beside a bookshelf.
Speaking of Her Catliness, here’s what she thinks of all this:
Thppt!
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Originally published in two parts at Dreamwidth.
Instead, I’ll be catching up on Troy Anthony Davis’s freestanding innocence claim, which has just been filed as a plea for original writ in SCOTUS. IIRC, SCOTUS has not granted an original writ of habeas corpus since 1925.
(EDIT: in re Grossman, 267 U.S. 87 (1925). My memory is not as crap as I’d thought. Also, a good history of the original writ is available in the Felker v. Turpin opinion, if anyone is into legal history.)
Davis’s case is complicated by the fact that his is a freestanding innocence claim, or a claim that “look, I didn’t do this and here is evidence,” rather than a claim of “the court did not play the game according to the rules.” The problem with freestanding innocence claims on habeas is that they may not exist. Section 2254 of AEDPA limits federal habeas review of state convictions to claims that are “contrary to, or involve[] an unreasonable application of, Federal law, as determined by the Supreme Court of the United States”, or which “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
As I understand it, Mr. Davis’s freestanding innocence claim is based, at least in part, on the fact that seven eyewitnesses who testified at his trial have since recanted. While common sense has us all going “wtf? of course he’s innocent! Grant his fucking writ already!”, the law itself is not on Mr. Davis’s side.
First, there IS no “contrary or unreasonable application of” Federal law involved in a freestanding innocence claim. (Arguably. There have been arguments that convicting innocent people is itself a contrary or unreasonable application of law, its spirit if not its letter. SCOTUS has not been all that impressed with such arguments in past, mostly because if convicting innocent people is a “contrary or unreasonable application of” any law, it’s the State law under which he or she was convicted, which is not appropriate grounds for federal review.) Freestanding innocence is not “the court screwed me by not playing by the rules.” It’s “I didn’t do this.”
The closest SCOTUS has ever gotten to admitting the viability of a freestanding innocence claim was in Herrera, in which the Court said that it couldn’t say freestanding innocence didn’t exist, just that this case wasn’t it. Not the most comforting of opinions (“I’m not not licking toads!”), but it did leave the door open for cases like Mr. Davis’s – and, comparing Davis’s seven recanting eyewitnesses to the facts of Herrera, I’d say he’s got a chance of being the “freestanding innocence” claim, albeit not a very good one.
(On the other hand, comparing the same facts to the case of Kyleen Hargrave-Thomas, they’re probably about equal on the freestanding innocence-o-meter, but Ms. Hargrave-Thomas is still sitting in Scott while Judge Gadola sits on her 60(b) and Governor Granholm sits on her claim that she’s not going to do shit till Judge Gadola rules on the 60(b)…and that case had a genuine 2254(d)(1) claim in addition to freestanding innocence. But no, I’m not bitter.)
The other problem, of course, is that any freestanding innocence claim relies for its very existence on the discovery of new evidence not reasonably discoverable at the time of trial. Which Mr. Davis has. But which immediately slams the door on a 2254(d)(2) claim. 2254(d)(2) deals with an “unreasonable determination of the facts,” which would immediately seem to encompass a freestanding innocence claim, except it’s only the facts “in light of the evidence presented in the State court proceeding.” Meaning that, for the purposes of 2254(d)(2), those seven lying witnesses (assuming they did lie in the State court and are not lying on their recant, which the prosecution will argue, you watch) are still in play. Shoots freestanding innocence right dead, I tells ya.
Often, it’s possible to wedge a freestanding innocence claim through 2254(d)(1) by hooking to an ineffective assistance of counsel claim, by blaming counsel’s inept investigation for not discovering the innocence evidence prior to filing the 2254(d)(1) petition. Tricky, because counsel has to have fucko’ed that one after trial but before now, though it’s doable if you can hook the mistake to your appellate counsel’s performance, to-wit: “My appellate counsel fucked up by not doing enough investigation to find out that seven of these nine eyewitnesses were lying fucking liars.”
The problem, of course, is that “my counsel’s investigation was inadequate” is not an ineffective assistance of counsel claim so long as counsel did any investigation at all; it’s only ineffective assistance if counsel did no investigation whatsoever. Also, counsel is allowed to come to court drunk and to sleep through large portions of your trial. No, really.
(It’s really fun to get habeas petitions that are all “my trial counsel fucked up and my appellate counsel fucked up by not noticing that my trial counsel fucked up. Repeat for seventeen different instances of fuckup. Also, I’m going to argue that my postconviction counsel fucked up by not noticing each of the seventeen different instances of fuckup even though there is no ineffective assistance claim for postconviction counsel because there is no Constitutional right to postconviction counsel. Fuckup fuckup fuckup fuckup fuckup. Also I am, like, the innocentz, yo.” Ninety-nine and 44/100% of those petitions go to the circular file.)
So there you go. We’ve got a claim that cannot be brought under Federal statute and which “doesn’t not exist” under Federal common law, and a bench that is largely untested in the habeas arena except when it comes to “enemy combatants,” an area which said bench cannot seem for the life of it to get in accord with its own precedent. (I miss O’Connor and Rehnquist.) My hopes, they are not high.
The first thing that strikes me on getting a quick background in Mr. Davis’s case is his counsel’s repeated attempts to argue that the Eighth Amendment creates a substantive right not to be executed when you’re innocent.
I understand attempting to ground such a right in the Eighth Amendment, since it certainly doesn’t exist in either of the due process clauses – they only give you the right not to be deprived of life without due process of law, not “without due process of law producing the result that comports with reality.” To my knowledge, no one has ever argued that “due process” means “process producing the correct result,” and one wonders how one would enforce such a process if it were required.
But no court has ever found a substantive right of no-innocent-execution or anything like it, and asking any court to do it with nothing on which to stand is a tall order. Cooking up a new substantive right out of whole cloth – even if it is a substantive right with which the overwhelming majority of Americans would agree – is massive judicial activism. The Warren court would probably have had the guts to do it, but our current bench doesn’t, and neither does the Eleventh Circuit.
Which also gives us today’s “surprise right you don’t have”: you don’t have a constitutional right not to be executed if you are innocent of the crime for which you are being executed. Really. I will now hold while you contact your Senator.
*pause, sip coffee*
The primary problem in the lower courts immediately prior to the filing of the cert petition for an original writ (available here) is that Mr. Davis’s federal habeas claim under 2254 was procedurally defaulted. There are ten billion and twelve ways to commit procedural default, but the upshot of all of them is that you cannot get your petition heard, not because your petition itself is crap but because you did something wrong in submitting it to the court.
To vividly illustrate, the actual murderer himself could show up in court and testify, with photographs, diagrams, and video of the event, that he is actually the murderer and not you, but if you somehow nine months ago forgot to put a staple in the proper corner of a document, you’re going to execution and there’s nothing you can do about it. (And yes, some procedural defaults are nearly that banal.)
I will now hold again while you contact your Senator. The law you are pissed about is the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA, pronounced “ED-puh”).
*pause, sip coffee*
No, really, call your Congresscritter, especially if he happens to be Arlen Specter; Specter specifically submitted and got passed an amendment to AEDPA that was supposed to allow innocence claims to be heard regardless of procedural default. He will be right pissed to hear the courts have eaten his amendment.
One of the things you absolutely must do before filing a habeas petition in federal court (on a State conviction, not a federal one) is “exhaust your claims” in state court; that is, anything you want to argue in federal court must be presented first to every available level of your state courts. If you were convicted in a state with a dual-track postconviction system, you’ll have to present it to all of them twice: once on trial/appeal and once on postconviction. (We have this in Michigan; it’s called a 5600 petition, after the Michigan Court Rule that governs it.)
Once you file a federal habeas petition, AEDPA gives you one year (365 days) to make it through the federal courts. The months or years the feds sit on your petition once you’ve filed it do not count against you. Usually, if a district court finds you haven’t exhausted your state claims, they grant what’s called a “stay and abeyance”: basically, they agree to sit on your petition, thus stopping the one-year clock, for as long as it takes you to run back to state court and clean up there. A stay-and-abeyance isn’t guaranteed, but they’re usually not denied absent extraordinary circumstances, like it’s obvious you fucked up on purpose for some nefarious reason.
According to the cert petition, and I’m too lazy to go pull the state court opinions to verify, the U.S. District Court refused to grant a stay-and-abeyance on Mr. Davis’s first habeas petition, which frankly shocks me, especially on a freestanding innocence claim, which it appears he’d developed by that time (his Constitutional claims were a Giglio prosecutor-induced perjury claim and a Brady prosecutor-withholding-of-exculpatory-evidence claim – not strong stuff).
Oh, but then it goes to appeal, and then it gets fun.
The highly unimaginative Eleventh Circuit, in denying Mr. Davis’s petition for leave to file a second habeas petition (opinion available here) said, among other things, that Mr. Davis should have stated a substantive freestanding innocence claim (in shorthand, a Herrera claim) to supplement his procedural freestanding innocence claim (in shorthand, a Schlup claim).
Schlup is ass-long and complicatz0red, but it’s basically the “escape hatch” of procedural default. That is, if you have been procedurally defaulted, you can still get a court to hear your habeas petition if you can show enough evidence (not previously available at trial or appeal) of your actual innocence that it is “more likely than not that no reasonable juror would have convicted” in light of that new evidence.
The Eleventh Circuit’s “so sorrie, should has argued you some Herrera” stance makes no sense. A Schlup claim does not stand or fall on the content or merits of the habeas petition. Schlup is a gateway claim: all it gets you is the right to have your habeas petition heard, regardless of what’s in it or whether it can hold water for more than five seconds. I’m pretty certain, in fact, that the Eleventh Circuit got this wrong. Unfortunately, it (a) doesn’t create valid grounds for a subsequent petition even if they did, and (b) doesn’t appear to be the basis of their judgment anyway.
If SCOTUS denies this petition, it will not, officially, be on the basis of Section V, which argues for a substantive Eighth Amendment right not to be executed if innocent. It may however be unofficially based on Section V. The Section makes all the right arguments from all the right cases, but the politics of the current Court make it highly foreseeable that this Court will decide not to bother with freestanding innocence at the cost of a man’s life when other courts would not.
After all, the strongest statements from SCOTUS against executing the innocent come from O’Connor, who is gone; Blackmun, who is dead; and Souter, who is leaving at the end of this Term (if granted, Mr. Davis’s claim would not be heard until next Term, unless remanded to the U.S. District Court for an evidentiary hearing.) In their places we have Roberts, who has never once taken the side opposite the State in any context; Alito, who will almost certainly argue this is a problem for the legislature; and [MYSTERY NOMINEE], who would only plug up the Souter hole but not provide extra impetus for finding a substantive right. (Also, if [MYSTERY NOMINEE] is Judge Sotomayor or Judge Wood, I don’t think she’d find a substantive right, either.)
This, in short, is not a Court likely to stand up and say “the time has come to make an affirmative statement about freestanding innocence claims and the right not to be convicted for crimes you didn’t commit and it is this.” Granting this petition would be tantamount to doing that, if not actually doing it. We just don’t have that Court.
I’m not saying that Section V shouldn’t be in there; I think it’s an absolutely proper, necessary, and vital argument and that it’s well-made for what it is. I’m saying that, despite the properness, necessity, and vitality of said argument, SCOTUS’s current personality is not one amenable to granting on those grounds.
…On the other hand, SCOTUS does have the option to grant without deciding by simply saying “yes, fine, District Court, give this poor schlub an evidentiary hearing” and wash its hands of the rest.
The crucial bit of the cert petition is on pages 18-19:
Once a petitioner is found to be innocent under Schlup, relief based on the petitioner’s underlying constitutional claims invariably follows. Indeed, once a court finds that “it is more likely than not that no juror would convict petitioner in light of the new evidence,” it defies all logic and morality that he would be executed nonetheless.
We discussed this very thing in my habeas class because it remains to this day an unresolved paradox of habeas law: a successful Schlup argument results in a federal court ruling that no reasonable juror would convict the petitioner, yet the petitioner (a) is still forced to attempt to establish that (1) there is such a thing as a substantive freestanding innocence claim and (2) his case is it, and (b) still faces the very real possibility that his habeas petition could be denied, which means that even though no reasonable juror could convict him, he remains convicted.
If SCOTUS grants this petition, it will be because of these two sentences. No Court has ever addressed this paradox. SCOTUS may or may not address this paradox in granting the petition; it doesn’t have to, and the temptation not to do so will be great, particularly for this Court regardless who Obama puts on it. (Nobody Obama picks could change the tenor of this Court much, frankly.)
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Justice Souter Retires
CALLED IT, as soon as I realized he hadn’t picked clerks halfway through April. He was always last to pick, but April is too long to wait even for him.
(I have the jealous. He’s going home to a cabin in New Hampshire with no Intertubes or telephones and where people leave him the fuck alone with his prodigious brain. I want to be left the fuck alone with Souter’s prodigious brain.)
(He does own a television, a gift from some friends. He has never plugged it in.)
Scott Lemieux contemplates the political effects of Souter’s retirement at the Guardian’s Comment is Free.
Statements from the remaining eight justices. Scalia, as usual, comes through with a zing: “The only consolation is that I am sure he will be happy back in his cold and beloved New Hampshire.”
It was inevitable: white man Mark Halperin throws a shitfit over the possibility that Obama will consider candidates for Souter’s vacancy who are not straight white cisgendered males.
Dear Halperin:
(a) If you gave your son seven-ninths of his birthday cake, would you let him pitch a hissyfit over how you gave his sister and his friend from next door one-ninth each? No. You’d box his ears and tell him to suck it up and quit being a whiny pansy-ass cakeface. Therefore, Halperin: suck it up and quit being a whiny pansy-ass cakeface. Why, NEXT year you might have to admit that women and POCs are HUMAN!
(b) I currently put the chances of Obama nominating Cass Sunstein at better than fifty percent. And Cass Sunstein is what? Oh, yeah – A WHITE MALE. Dumbshit.
(I had Elena Kagan first in line, but I don’t see him moving her out of the SG’s office quite so soon.)
Speaking of Obama, is he backpedaling on “Don’t Ask, Don’t Tell”? Seems to me now would be the time to strike, when gays are already getting gayified rights of gayness in multiple gaytastic states, and the armed forces are in no position to put up an effective fight against the ongayslaught. But what would I know?
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Although I bitch about it, there are days I’m really glad I do civil defense, not criminal defense. There are days I’m utterly grateful for the luxury of being just another private citizen with just another personal opinion I feel totally justified in voicing to anyone who will listen.
Lately, most of those days have included Angie Zapata’s case, which broke my heart when it broke and which breaks my heart even now, despite the fact that the jury came out better than expected. Juries don’t restore people to life, after all.
And yes, right now I’m reveling in the luxury – and it IS a luxury – of thinking that Andrade is a dangerous depraved violent piece of shit and LWOP is waaaay too good for him. I mean, fuck, he’s still got rights, truncated as they are: to appellate review, to habeas (my opinion that AEDPA is just about as depraved as Andrade notwithstanding), to 60(b) the shit out of his conviction. Meanwhile, Angie’s got…well?
But I feel I have to say something about the defense.
The first thing you must understand about a lawyer’s job is that we are not required to believe anything that comes out of our mouths. We are required to have a good-faith belief in the merits of our position, but that only means we have to believe the law really could work like we’re saying it should and that we’re not wasting the court’s time. That has nothing to do with personally believing what we’re saying.
(For instance: one of my most commonly-uttered sentences is “the plaintiff had a plain duty to read the insurance contract he signed.” Do I believe this is an accurate statement of Indiana law? Yes. Do I believe it will resolve an issue before the Court when I say it? Yes. Do I believe it? BullSHIT.)
A criminal defense attorney’s job is particularly difficult because, well, we’re required to defend criminals. Which, to the general public, means (a) we believe this depraved asshole is innocent, and/or (b) we believe what we say while trying to defend said asshole.
Neither one is necessarily true in any given case. In fact, I’m fair certain that Andrade’s attorney did not think Andrade was innocent – the “trans panic defense” (which private-citizen me is EVER SO GLAD failed, because what BULLSHIT law would THAT SHIT make?) pretty much excludes an innocence claim. But it’s precisely because that defense is so inflammatory that the second part is so important.
Criminal defense attorneys do not necessarily subscribe to the defenses they present. Got that? Criminal defense attorneys do not necessarily subscribe to the defenses they present. Our first duty is to our client, and we present the defenses that give our client a chance in cold hell. (And, before you blame criminal defense attorneys for that, imagine what it would have been like to have been accused of Angie Zapata’s murder while knowing you were innocent. Then tell me you don’t want a criminal defense attorney whose first duty is to you.)
I say this because I have had to think long and hard about whether I would have presented the “trans panic defense” in this case. My personal theory of criminal defense is that it is my job to make sure the game is played according to the rules, and that my responsibility can end once I’ve ensured the prosecutor has been forced to prove every element of his case beyond a reasonable doubt and within the confines of Constitutional fair play. But in this case, Strickland might have mandated me to present a defense I think is not only bullshit, but violent depraved misogynistic bullshit. Could I have done it? Would I?
I don’t know.
I’d like to think I’d go to the mat for a client’s rights no matter what he’d done. But this one…I don’t know. For one, I don’t know at all that the “trans panic defense” goes to the client’s Constitutional rights. If it’s in any, it’s in the “fair trial,” which is nebulous and which may not be a substantive right. Not that theorizing would make my decision any easier. (We will assume I’d have been court-appointed and could not have withdrawn. “I think my client is a violent depraved asshole and his only possible defense is violent misogynistic bullshit” is, usually, not enough to get a court-appointed attorney out of a case. Ironically, “my client’s sister’s roommate’s stepmother’s cousin is my hairdresser” might be.)
To be completely honest, and it sickens me, I think I would have put on the “trans panic” bullshit. I really do. Not because I felt any particular loyalty toward my client. In fact, I’d probably do it because I wanted him off the streets. My reasoning is that, without that “defense,” I leave a giant gaping hole in my case for Andrade to point to at every post-conviction phase and yell “ineffective assistance of counsel!” Strickland is a tough claim to make, but if he makes it? He’s out. And I find that much more scary and dangerous than my having to tell a violent dangerous misogynistic bullshit story to twelve random yokels whom I can only pray will see it for the violent dangerous misogynistic bullshit it is.
Yes, I would have to live with myself; and yes, I’d have to live with all of you exercising your First Amendment luxury to call me a violent dangerous misogynistic asshole attorney for the rest of my life. To close off a gaping appellate hole having nothing to do with the merits of the case or conviction? I’d take that hit.
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